Filed 12/18/06
IN THE SUPREME COURT OF CALIFORNIA
In re ANDRE BURTON,
S034725
on
Habeas
Corpus.
Petitioner Andre Burton is under sentence of death for the 1983 murder of
Gulshakar Khwaja. The murder was committed during the robbery of Gulshakar’s
son, Anwar Khwaja. This court affirmed Burton’s convictions and death sentence
on automatic appeal (People v. Burton (1989) 48 Cal.3d 843) and denied an earlier
petition for writ of habeas corpus in 1988.
The present petition was filed in 1993. In October 1997, we issued an order
to show cause on claim XIV of the petition, which asserted that Burton was denied
the right to present a defense at the guilt phase of his capital trial under People v.
Frierson (1985) 39 Cal.3d 803 (Frierson). After we directed the Presiding Judge
of the Los Angeles County Superior Court to select a judge to serve as a referee at
an evidentiary hearing, we appointed the Honorable William F. Fahey as our
referee to take evidence and make findings of fact on specified allegations.
On January 6, 2005, the referee filed a 32-page, single-spaced report in this
court. The referee detailed his answers to the reference questions and concluded
that Burton had failed to prove (1) that his trial attorney had overridden his clearly
expressed desire to present a guilt phase defense, or (2) that, even if Burton had
made such a request, there was credible evidence to support a guilt phase defense.
1
After carefully considering the record and the briefing in this court, we agree with
the referee that Burton has not sustained his burden of proving that his trial
attorney disregarded a clearly expressed desire to present a guilt phase defense
under Frierson. We therefore find it unnecessary to consider whether there was
credible evidence to support such a defense. The order to show cause is
discharged.
BACKGROUND
A. The Underlying Judgment
On the afternoon of February 25, 1983, Anwar Khwaja, the robbery victim
and son of the murder victim, was parked in front of his mother’s home waiting
for her and other family members to get into his car. Burton approached the
vehicle, pointed a gun at Khwaja’s face, and demanded money. Even though
Khwaja complied with the demand by telling Burton to take his money—a cloth
bag containing $190 in coins he had just picked up from a Long Beach branch of
the Bank of America—Burton shot him in the forehead and then through the eye.
Khwaja, who remained conscious, saw Burton take the money bag. Burton was
smiling or laughing contentedly. When Khwaja’s mother, Gulshakar Khwaja,
approached the car, Burton shot her, fatally, in the chest.
Khwaja identified Burton as the gunman at trial. So did Robert Cordova, a
neighbor who looked out the window and saw Burton running down the street
carrying a gun and a white canvas bag. Burton, who was arrested two days after
the murder, initially denied involvement in the robbery and murder but then
admitted that he and his confederate Otis Clements had been looking for someone
to rob, had seen Khwaja emerge from a Bank of America branch with the money
bag, and had followed him until he parked in front of his mother’s home. While
Clements parked his truck in an alley, Burton approached Khwaja’s car and
demanded money. He shot Khwaja in the face and grabbed the money. He was
2
running away when Gulshakar Khwaja tried to “snatch him from behind,” so he
shot her too. He then drove off with Clements in the truck. Burton said there was
about $100 in change in the bag, which he spent on marijuana.1
On February 28, 1983, when police interrogated Burton a second time, he
denied any knowledge of or involvement in the offenses and said that his prior
statements were untrue and designed to avoid his being framed.
At the penalty phase, the People presented evidence that Burton, as a
juvenile, had committed a lewd act on a child in 1976, a residential burglary in
1977, an attempted robbery in 1978, and an attempted grand theft person in 1979.
The trial court also took judicial notice of Burton’s adult convictions of two counts
of residential burglary and his 16-month prison sentence in 1982. Burton’s mother
testified that Burton’s father had been murdered when Burton was five years old,
that four of her five boys and one of her three girls had been in trouble with the
law, but that Burton was always a good boy at home.
Burton was convicted of murder with personal use of a firearm, three
counts of robbery with personal use of a firearm and, in one instance, with
intentional infliction of great bodily injury. The jury also found true the special
circumstance allegation that the murder was committed in the course of a robbery.
The penalty was fixed at death. (People v. Burton, supra, 48 Cal.3d at pp. 849-
851.)2
1
Burton also admitted he and Clements had robbed at gunpoint two women
who were seated in a pickup truck in a K-Mart parking lot in Long Beach a short
time earlier.
2
After the jury returned a verdict of death, Burton moved for a new trial on
the special circumstance and the penalty on the basis of our opinion in Carlos v.
Superior Court (1983) 35 Cal.3d 131 (overruled by People v. Anderson (1987) 43
Cal.3d 1104, 1147), since his jury had not been instructed on the intent-to-kill
element of the felony-murder special circumstance. The trial court granted a
(footnote continued on next page)
3
B. The Habeas Corpus Proceeding
The second petition for writ of habeas corpus alleged in claim XIV in
relevant part that Burton’s trial attorney, Ronald Slick, had determined early on
not to present guilt or special circumstances defenses, that both Slick and the trial
court knew the attorney’s actions “were contrary to Petitioner’s express wishes,”
that the defense rested at the guilt phase without presenting any witnesses, and that
there were a number of witnesses whose testimony would have provided a viable
defense to the robbery and felony-murder charges and the special circumstance
allegation. The petition alleged in particular that Michael Stewart was an
available eyewitness who had described the shooter “in a way that clearly
excluded Petitioner as the assailant,” that eyewitness Susana Camacho had told the
police the robber was White (Burton is African-American), and that Burton’s
girlfriend Elizabeth “Penny” Black would have testified that Burton had been
home with her and two other people at the time of the charged robberies. The
petition also alleged that Burton had sought on four occasions during the trial to
discharge his attorney and represent himself (see Faretta v. California (1975) 422
U.S. 806) because of Attorney Slick’s deficiencies.
On October 29, 1997, we issued an order to show cause why relief should
not be granted on the ground that Burton “was denied the right to present a
defense at the guilt phase of trial.” In the return, the People, represented by the
Attorney General, denied the relevant allegations and alleged instead that Attorney
(footnote continued from previous page)
limited new trial on the issue of intent to kill; the special circumstance finding and
the death verdict were not disturbed. The new jury returned a finding that Burton
had intended to kill the victim. (People v. Burton, supra, 48 Cal.3d at pp. 851-
852.)
4
Slick had decided, based on the strength of the evidence against Burton and on his
own investigation into possible defenses, to concentrate his efforts on saving
Burton’s life at the penalty phase. The return also alleged that Attorney Slick had
kept Burton apprised of his decisions and strategy, that Burton never requested
that certain witnesses be called or that a particular defense be proffered, and that
the true reason Burton had asked the trial court four times to be allowed to
represent himself “was to obtain a continuance to avoid going to trial, not because
he wanted further investigation conducted.” The People also alleged that the
Frierson claim was untimely. In his traverse, Burton did not dispute that Attorney
Slick had been aware of potential witnesses Michael Stewart, Susana Camacho,
Elizabeth Black, Ora Trimble (Black’s mother), Gloria Burton (Burton’s mother),
and Zarina Khwaja, but denied the allegation that Attorney Slick had made
objectively reasonable tactical decisions not to call them to testify and denied as
well the allegation that these witnesses could not have provided a viable defense.
The traverse further denied the allegations that Attorney Slick had kept Burton
apprised of his decisions and strategy, that Burton never requested that certain
witnesses be called or that a certain defense or defenses be offered, and that his
true reason for the Faretta motions was to obtain a continuance to avoid going to
trial. The traverse alleged instead that Attorney Slick “unilaterally decided not to
present a guilt phase defense without regard for petitioner’s repeated requests that
available evidence be presented to establish that petitioner was not guilty,
including but not limited to his alibi for both crimes, that the prosecution’s
eyewitness identifications were all suspect because they had been obtained under
highly prejudicial circumstances, that other eyewitness evidence excluding
petitioner as the perpetrator was available, that petitioner’s confession had been
fabricated by the police, and that the lack of physical evidence against him was
5
affirmative evidence of his innocence.” Finally, the traverse denied the claim of
untimeliness.
We thereafter appointed a referee to hear evidence and make findings of
fact on these questions:
“1. Did petitioner give attorney Ron Slick or his investigator the names of
witnesses he believed should be interviewed and tell Slick that those witnesses
could support a guilt phase defense or defenses? If so, when did petitioner do so,
who are those witnesses, and what theory or theories of defense did petitioner tell
Slick those witnesses would support? In particular, did petitioner tell Slick that he
wanted Slick to present an alibi defense and/or defend on the ground that the
eyewitness identification was mistaken or could be undermined by other
eyewitnesses?
“2. Did petitioner tell Slick that petitioner’s purported confession had been
falsified? If so, when did he do so, and did Slick have any reason to believe that
the officer or officers who reportedly took the confession were not credible?
“3. If petitioner gave Slick the names of potential guilt phase defense
witnesses, did Slick or his investigator interview those witnesses, when did they
do so, what information did they obtain from the witnesses, and of what potential
prosecution rebuttal or impeachment evidence was Slick aware when he developed
his trial strategy? Did Slick have reason to believe that those witnesses would not
be credible?
“4. Did Slick keep petitioner informed of Slick’s trial plans and/or discuss
trial strategy with petitioner and, in particular, did he tell petitioner that Slick did
not intend to call witnesses or put on a guilt phase defense because Slick believed
that a guilt phase defense likely would be unsuccessful and would make the
penalty phase defense less credible? If so, when and in what circumstances did
6
Slick advise petitioner of this? If not, did Slick discuss his planned guilt phase
defense with petitioner, when did he do so, and what did he tell petitioner?
“5. If Slick discussed a planned guilt phase strategy of presenting no
defense with petitioner, did petitioner then or thereafter object (other than in open
court during or before trial) and tell Slick that, notwithstanding Slick’s conclusion
about presenting a guilt phase defense, petitioner wanted a guilt phase defense
presented? If so, when did petitioner do so and what was Slick’s response?
“6. Did Slick have reason to believe that petitioner’s in court requests to
represent himself were made for the purpose of delaying trial, rather than
dissatisfaction with Slick’s trial strategy?
“7. Was Slick aware of potential witnesses Elizabeth Black, Ora Trimble,
Gloria Burton, Michael Stewart, Susan Camacho and Zarina Khwaja, and, as to
each, if so did Slick have reason to believe the testimony of each would be
incredible or insufficiently probative to justify presenting them at the guilt phase?
“8. Did petitioner tell or make clear to Slick’s investigator that he wanted
to put on a guilt phase defense? If so, when did he do so and did the investigator
relay that information to Slick?
“9. Would the potential witnesses, if any, identified by petitioner, have
been credible, would they have enabled Slick to put on a credible defense, and did
Slick have reason to believe that any would commit perjury if they testified as
suggested by petitioner?
“10. In particular:
“a. Did Detective William Collette tell Slick that Elizabeth Black
told him that she did not know petitioner’s whereabouts at the time and on the day
of the charged homicide?
“b. Did Black tell Collette that she did not know petitioner’s
whereabouts at the time and on the day of the charged homicide?
7
“c. Did Collette tell Slick that Ora Trimble told him that petitioner
had asked her to provide him with a false alibi for the charged homicide?
“d. Did Ora Trimble tell Collette that petitioner had asked her to
provide him with a false alibi for the charged homicide?
“11. In sum, did Slick override a clearly expressed desire of petitioner to
put on a guilt phase defense, and, if so, would that defense have been credible?
(People v. Frierson (1985) 39 Cal.3d 803, 814-815.)”
The referee heard testimony from 15 witnesses over 14 court days and
considered several boxes of documentary exhibits. The referee then rejected
Burton’s claim in its entirety and found in particular (1) that Burton never clearly
expressed a desire to present a defense at the guilt phase of his trial, and (2) that,
even if Burton had done so, there was no credible evidence supporting a guilt
phase defense.
The parties have filed postreference briefs on the merits. Burton has also
filed exceptions to the referee’s report. We address the referee’s individual
findings and Burton’s specific exceptions to them only insofar as they are relevant
to our analysis of Burton’s claim that he was denied the right to present his desired
defense under Frierson.
DISCUSSION
In Frierson, this court reversed the special circumstance findings and the
judgment of death based on appointed counsel’s refusal on the record to comply
with his client’s clearly expressed desire to present a particular defense—in that
case, a defense of diminished capacity—to the charged murder at the guilt phase
of the trial. (Frierson, supra, 39 Cal.3d at p. 805.) The conflict was made
manifest when defense counsel indicated, at the close of the People’s case-in-
chief, that the defense was resting without putting on any evidence. During an in-
chambers conference immediately following this announcement, defense counsel
8
stated that, in his opinion, no defense (including the defense of diminished
capacity) should be presented at the guilt phase of the trial but that Frierson
himself “ ‘strongly disagree[d]’ ” with counsel’s approach and had advised
counsel “ ‘several times,’ ” including in the past 20 minutes, that he wished to
present that defense. (Id. at pp. 810-811.) It was here that the trial court fell into
error (id. at pp. 817-818), for it then ruled that under its understanding of the law,
“ ‘the final judgment and decision has to be that of the attorney as to how to
proceed in a case.’ Accordingly, it concluded that defense counsel had the
authority to decline to present a defense, despite defendant’s contrary wishes.”
(Id. at p. 811.)
In reversing the judgment in part, the plurality opinion emphasized that the
defendant had made it “clear” from the outset that he wanted to present a
diminished capacity defense at the guilt phase (Frierson, supra, 39 Cal.3d at p.
811) through an “express demand” for the defense (id. at p. 809), that the record
“expressly reflect[ed] a conflict between defendant and counsel over whether a
defense was to be presented at the guilt/special circumstance stage” (id. at p. 818,
fn. 8), and that counsel’s resolution of this “express conflict” (ibid.) eliminated
what would have been the defendant’s “sole defense to the special circumstance
allegations.” (Id. at p. 814.) We explained that even though defense counsel may
have had sound reasons for wishing to reserve the evidence underlying this
defense for the penalty phase, the decision whether to present any defense at all at
the guilt/special circumstance phase of a capital case is so fundamental, and has
such serious consequences for a defendant, that counsel could not “properly refuse
to honor defendant’s clearly expressed desire to present a defense” at the guilt
phase. (Id. at p. 815.)
The plurality opinion also relied substantially on “the existence of some
credible evidence to support the defense.” (Frierson, supra, 39 Cal.3d at p. 812.)
9
We therefore did not need to consider “whether a defendant has a constitutional
right to insist on the presentation of a defense which has no credible evidentiary
support or on which no competent counsel would rely” (id. at p. 815, fn. 3), nor
did we resolve the nature of the attorney’s obligations when—for ethical
reasons—he or she “cannot properly present the defense that the defendant desires
to present,” as “when counsel has reason to believe that defendant’s alibi
witnesses intend to give perjured testimony.” (Id. at p. 817, fn. 6.)
Thus, Frierson means that “a defense counsel’s traditional power to control
the conduct of a case does not include the authority to withhold the presentation of
any defense at the guilt/special circumstance stage of a capital trial when the
defendant openly expresses a desire to present a defense at that stage and when
there exists credible evidence to support that defense.” (People v. Milner (1988)
45 Cal.3d 227, 246; see also People v. Jones (1991) 53 Cal.3d 1115, 1139.)
However, “ ‘it is only in case of an express conflict arising between the defendant
and counsel that the defendant’s desires must prevail’ ” (People v. Bradford
(1997) 15 Cal.4th 1229, 1332) and, even then, only when the defense requested
has “ ‘credible evidentiary support.’ ” (People v. Jones, supra, 53 Cal.3d at p.
1139.)
As previously indicated, the referee, after hearing the evidence, found that
Burton did not clearly or openly express a desire to present a defense at the guilt
phase. In particular, the referee credited Attorney Slick’s testimony (1) that he
had advised Burton of his intent not to call any witnesses or offer a guilt phase
defense so as to make the penalty phase defense more credible, and (2) that Burton
had not objected to this strategy. The referee rejected Burton’s testimony to the
contrary. The referee also determined that even if Burton had openly expressed
his desire to present a guilt phase defense, such a defense lacked credible
evidentiary support.
10
In evaluating Burton’s allegations, “this court gives great weight to those of
the referee’s findings that are supported by substantial evidence. [Citations.]
‘This is especially true for findings involving credibility determinations. The
central reason for referring a habeas corpus claim for an evidentiary hearing is to
obtain credibility determinations (In re Scott (2003) 29 Cal.4th 783, 824);
consequently, we give special deference to the referee on factual questions
“requiring resolution of testimonial conflicts and assessment of witnesses’
credibility, because the referee has the opportunity to observe the witnesses’
demeanor and manner of testifying” (In re Malone (1996) 12 Cal.4th 935, 946).’ ”
(In re Freeman (2006) 38 Cal.4th 630, 635.) With that standard in mind, we
proceed to consider Burton’s claim.
A. Whether Attorney Slick Overrode Burton’s Clearly and Openly
Expressed Desire to Present a Guilt Phase Defense
In Frierson, the defendant alleged and proved the existence of a clear and
express conflict between himself and defense counsel as to whether to present a
particular guilt phase defense at his capital trial. The record revealed that the
defendant “ ‘strongly disagree[d]’ ” with counsel’s decision not to present a
diminished-capacity defense at the guilt phase, that they had discussed the matter
several times, and that the defendant had repeatedly advised counsel of his
“ ‘strong, very strong’ ” desire to present this defense. (Frierson, supra, 39 Cal.3d
at pp. 810-811.) Defense counsel had told the defendant from the outset and “ ‘all
along’ ” that he was going to present a diminished-capacity defense through
testimony from psychiatrists and other witnesses, but then abandoned that plan and
rested without calling any witnesses—despite his awareness of the defendant’s
clear demand for the defense. (Id. at p. 811.) We determined, “under the facts of
this case” (id. at p. 805), that defense counsel could not properly refuse to honor
the defendant’s clearly expressed desire to present the diminished capacity defense
11
at the guilt phase and that the trial court erred in failing to take steps to safeguard
the defendant’s right to present a defense. (Id. at pp. 815-818.)
Petitioner’s allegations here present a somewhat different situation. Burton
does not assert that there was a clear and express conflict over defense strategy in
this case, nor does he contend that the trial court erred in failing to intervene to
protect his right to present a defense. He claims instead that Slick neglected to
meet with him or keep him informed of developments during the representation
and that Slick failed in particular to mention that he had settled on a strategy of not
presenting a defense at the guilt phase. As a result, Burton claims, he was
justifiably ignorant of Slick’s trial strategy and knew only that the investigation
into his defense had not been completed at the time of trial. Burton concludes
that, under these circumstances, his statements to Slick and to his investigator,
Kristina Kleinbauer, denying involvement in the crimes, denying confessing to the
police, and asking that particular witnesses be called who could testify as to his
whereabouts—in addition to stating in court during his four Faretta hearings that
the defense investigation had been inadequate—should have alerted Slick to his
desire to present a defense.
Slick, on the other hand, testified that he did discuss his assessment of the
strength of the People’s case and his intent not to present a defense at the guilt
phase with Burton and that Burton did not object to it. This strategy had been the
product of considerable thought. Slick did not dispute he had been aware that
Burton had denied involvement in the crimes, that Burton had denied confessing
to the police, and that there were certain discrepancies and potential weaknesses in
the eyewitness identifications. He also did not dispute that he had been aware of
particular witnesses who (Burton claimed) could have supported a guilt phase
defense. Nonetheless, based on his pretrial investigation, Slick had concluded that
the prosecution had an extremely strong case with respect to the identification of
12
the murderer. Moreover, Burton’s claim that the police had just made his
confession up “out of the blue” seemed ludicrous on its face, especially given that
Burton repeatedly and emphatically refused to testify, even at the motion to
suppress the confession, and understood that there was no chance of excluding the
confession without his testimony. Slick also considered the statements of Burton’s
friends and family members, which were inconsistent with each other and did not
necessarily account for Burton’s whereabouts during the relevant time period.
Slick feared the accounts given by these witnesses would be rejected as mistaken
or untruthful. These observations played a significant part in Slick’s decision not
to offer any witnesses at the guilt phase.
Slick shared his intended strategy with Burton not just once, but several
times, since the “topic” was “always there.” Slick told Burton he did not intend to
call witnesses or put on a guilt phase defense because not only would such a
defense be unsuccessful, it would diminish the credibility of any defense they
might offer at the penalty phase. According to Slick, Burton did not object to or
oppose this strategy. In particular, Burton did not ask that friends or family
members be called to testify or ask that a defense of alibi or mistaken
identification be presented. From “early on” in the representation, however,
Burton seemed unhappy with Slick’s assessment of the strength of the People’s
case, and Slick believed that his candor negatively affected his relationship with
Burton thereafter.
There was thus a direct conflict between the account given by Burton and
the account given by Slick. The referee had the opportunity to observe both of
them testify and to assess their demeanor and their credibility. Based upon those
observations and “the contemporaneous record,” the referee concluded that Slick
“did advise [Burton] of the trial strategy he planned to employ. [Burton] conceded
during the Reference Hearing that he had several pre-trial meetings with Mr. Slick
13
and [Burton] cannot posit a credible reason for Mr. Slick not advising him of the
trial strategy at one or more of those meetings.” The referee further found that
Burton had not objected to this strategy. Indeed, as the referee noted, Burton had
not even shown that there were heated conversations over Slick’s failure to keep
him informed of the defense strategy—the sort of conversations one would expect
if, as Burton now claims, Slick had completely failed to discuss strategy with him.
As stated above, “ ‘[d]eference to the referee is called for on factual
questions, especially those requiring resolution of testimonial conflicts and
assessment of witnesses’ credibility, because the referee has the opportunity to
observe the witnesses’ demeanor and manner of testifying.’ ” (In re Sakarias
(2005) 35 Cal.4th 140, 151.) The referee concluded that Burton “did not seem
very persuasive” in his testimony, but that Slick appeared credible and had no
reason to have disregarded a direct request by his client concerning the
presentation of a defense. We accept the referee’s conclusion, not only because of
the special deference accorded to a referee’s findings on matters of credibility
when supported by substantial evidence (In re Cox (2003) 30 Cal.4th 974, 999),
but also because Burton, despite offering an array of objections, fails to identify a
convincing rationale for rejecting it.
Burton complains first that Slick’s memory on this issue was
“extraordinarily poor” in that he could not recall precisely when he had informed
Burton of his intended strategy, nor could he relate any details of their
conversations on the issue, and that Slick’s recollection was rarely, if ever,
refreshed by written materials.3 Yet, as the referee observed at the hearing, it is
3
Burton complains also that there were no notes of this conversation in
Slick’s file. But, inasmuch as there were no notes from any of Slick’s
conversations with Burton in the file, the omission is not significant.
14
understandable that Slick would have difficulties reconstructing his thinking and
would be unable to recall details of conversations that occurred 20 years earlier.
Slick also persuasively explained why, despite his limited memory, he was able to
recall that he had kept Burton abreast of his intended strategy: “I wrestled with
that specific question in the trial. I mean, it was a serious question. I know that
it’s an easy thing to just call witnesses. I know it’s so easy that all[’]s you have to
do is call witnesses, pretty much, and we wouldn’t even be having this hearing.
[¶] And so one of the things that I . . . try to take into consideration is what I think
is best for the client versus what I think is best for me, and I remember wrestling
with that on whether I should call these witnesses. I viewed them as a total waste
of time and should I . . . cover myself or should I do what I think is the right thing,
and I came down on what I came down on.”
Burton claims next that Slick’s testimony cannot be reconciled with a letter
he wrote to Slick insisting on his innocence and pointing out weaknesses in the
People’s evidence. In this letter, Burton critiqued the testimony of four of the
People’s witnesses at the preliminary hearing and said, “Now them are all my
witnesses. All but the evil person Mr. Otis [Clements], who must take the fall in
this case.” He then claimed the police were trying to frame him and said, with
Slick’s help, “we together can work to fight that they are trying to frame me . . .
and I’m willing to fight for my freedom.” Burton ended by talking about himself,
telling Slick that “I . . . was at home with my family not afraid for any reason, also
not having any weapon at any time within my possession or reach for if I
committed such a hideous deranged kind of crime as this, a person would have had
some kind of weapon on him. I also believe nervousness would [definitely] be set
upon that person, but I know I’m not the person and there’s no guilty feeling. . . . I
feel if you can get the court to give you a highly educated group of people[] being
15
the jury there’s a good chance that I can get the people to understand I’m not the
person.”
This letter does not undermine Slick’s account. Although Burton does
claim in the letter that he is innocent and that Clements4 is the guilty party, he does
not identify any witnesses—other than the People’s witnesses—to support his
claim. Burton also claims that he was “willing to fight for his freedom” and refers
to a number of facts peculiarly within his knowledge, but Slick testified without
contradiction at the reference hearing that Burton had announced early on that he
would not testify in his own behalf. Moreover, it appears, as Burton’s counsel
now concedes, that Burton wrote the letter early on, before being interviewed by
Slick. Thus, even if one were to infer from this letter that Burton had at one point
wanted to present some kind of a guilt phase defense, it would not indicate
whether Burton maintained that view after talking with his attorney and, in
particular, after announcing his refusal to testify, nor did Burton ever establish that
a “highly educated” jury had been selected, which was the apparent prerequisite to
any desire to present a defense.
Burton relies next on the testimony of Kristina Kleinbauer, who was not yet
a licensed private investigator at the time she was assigned to Burton’s trial
defense in April 1983, but who was working for a licensed private investigation
firm. Slick instructed Kleinbauer to take a statement from Burton to determine his
participation in the robberies and murder, and the record supports the referee’s
findings that Slick delegated to Kleinbauer the task of identifying and interviewing
potential defense witnesses, that Burton provided Kleinbauer with the names of
4
Otis Clements was originally charged as a codefendant, but his trial was
severed on May 9, 1983.
16
witnesses—Ora Trimble, Hope Black, Penny Black, Gloria Burton and Denise
Burton—he believed should be interviewed, and that Burton’s claim that he had
been at his girlfriend’s home at the relevant time and had not confessed to the
police “suggest[ed] an alibi defense and, further, that the family members and
acquaintances named by [Burton] were potential alibi witnesses.” The record also
supports Kleinbauer’s testimony that Burton was dissatisfied with Slick.
Kleinbauer’s testimony, however, does not support Burton’s claim that he
had openly expressed a desire to present a defense, nor does it undermine Slick’s
testimony that he had discussed trial strategy with Burton. Although Kleinbauer
testified at the reference hearing that Burton had told her he wanted witnesses to
testify in his defense at trial, she had not mentioned this fact in her 1987 and 1993
declarations or in her pretrial investigative report. Nor had she stated in either of
those declarations that Burton had wanted to present any specific witness or any
particular defense. In her third (2000) declaration, executed 17 years after the trial
and seven years after her previous declaration, Kleinbauer instead stated only the
following: “I have been asked . . . whether Mr. Burton made it clear that he
wanted to present a defense at the guilt phase of the trial. Many years have passed
and I no longer recall Mr. Burton’s exact words on the subject. However, from
my dealings with him, it was always clear that he did. He consistently told me that
he had not committed the charged crimes and that he had not confessed to the
Long Beach police. He expressed to me his concern that his trial was scheduled to
start although my investigation was far from complete. He made it clear to me
that he wanted to finish my investigations before he went to trial. From our
conversations, I understood that he wanted to present a defense. Nothing Mr.
Burton ever said to me led me to believe that he would have agreed with Mr.
Slick’s apparent decision not to present a guilt phase defense.” Yet, as the referee
found, Kleinbauer’s recollection of Burton’s statements—as opposed to her
17
recollections of her feelings about them—do not indicate that he clearly expressed
a desire to present a defense as opposed to a desire for further investigation before
a final tactical decision could be made. We also agree with the referee that little
weight can be given to Kleinbauer’s recollection 17 years later (in the case of the
declaration) or 20 years later (in the case of her testimony at the reference
hearing). The passage of time weighs especially heavily with respect to
Kleinbauer’s testimony, inasmuch as she has a history of Alzheimer’s disease in
her family and was herself diagnosed with the disease and brain deterioration six
months prior to the reference hearing and was being treated for it.5 We also
decline to credit Kleinbauer’s testimony because of the referee’s finding, based on
observations of her testimony and demeanor, that Kleinbauer “had no real memory
of the events in 1983,” that she “was substantially biased” in Burton’s favor, and
that she “tried to shade her answers in a manner most favorable” to him. We
therefore credit as well the referee’s more general finding that Burton never told or
made clear to Kleinbauer that he wanted to offer a guilt phase defense.
Burton refers next to statements he made at trial in the course of his four
motions for self-representation. According to Burton, he openly expressed his
desire to present a guilt phase defense in these Faretta motions.
Burton first requested to represent himself on August 10, 1983, after Slick
advised the court he was ready for trial. Burton based his request on the “lack of
interest as far as the investigation is concerned with my case. There isn’t any that
should have been taken care of. I haven’t spent or had enough time to
5
Burton contends that the referee erred in discounting Kleinbauer’s
testimony. He points out that Kleinbauer’s medical condition caused her “memory
problems” and “difficulties testifying” as well as the “confusion or distraction
observed by the Referee.” We perceive no error. (See People v. Lee (1970) 3
Cal.App.3d 514, 528.)
18
communicate with my lawyer because he [hasn’t] given me the time . . . .” Slick
represented to the court that he had performed his investigation and was ready to
proceed. When the court noted that the 60-day limit (see Pen. Code, § 1382) had
almost run and inquired whether Burton was ready to proceed to trial, Burton
admitted he was not ready and asked for a continuance. The court then denied the
motion. (See People v. Burton, supra, 48 Cal.3d at pp. 854-855.)
The next day, Burton renewed his request, complaining that certain
statements in the investigator’s report (prepared by Kleinbauer) were inaccurate,
that he had seen a psychiatric expert only once (and “[d]idn’t even get into him
trying to find out what kind of person I am”), and that he now “know[s] for sure
that we have a lack of interest” by Slick based on Burton’s own review of the case
file. “I haven’t even seen Ron Slick. I see Ron Slick every time I come to the
court and I am tellin’ him the real, but all I’m getting’ is the fake, the frame.” He
also complained that Clements was trying to frame him for a different crime in the
Los Angeles County jail but that Slick told him “he don’t want to put it into court.
[¶] Now, it is going to show right there what kind of person Mr. Clements is and it
is going to also show that—that I shouldn’t be takin’ a fall, because this guy tried
to frame me for attempted murder in L.A. County Jail when I was at Wayside, and
I gave Ron Slick the file papers. He pulled them and showed them that he had
them, but don’t want to bring them to the court attention.” He reiterated that he
wanted to represent himself with Kleinbauer’s assistance. She had told him “that
something is shaky about my case and that Ron is not really on my side for this
case and she wanted to be with me, to work with me, because she know that it is
something about this case that is very shaky.”
19
Slick informed the court that he had prepared for trial, had investigated the
allegation that Burton was being framed by his former codefendant,6 and was “as
prepared as I know how to be.” Burton responded that there were inaccuracies in
the police reports and that “[t]he investigator that investigated this report
constantly was telling me all the things that were shaky about this, about wanting
to be rushed into this.” He also asked for an investigation into whether the police
officers who claimed to have elicited a confession from him had fabricated
confessions in other cases. Finally, Burton complained that Slick had told him at
the jail that he did not think Burton was going to win this case and that there was
nothing he could do about it.
The court advised Burton that Slick was a lawyer, not a magician, and may
be correct in his assessment of the case: “I don’t know the answer to that, but
even if it is, the stronger the case it is, the more you need a lawyer, and I think that
you can’t criticize a lawyer for leveling with you, rather than trying to conceal or
hide the facts and have it dropped on you all of a sudden.” The court then denied
Burton’s motion for self-representation and for a continuance.
Burton made a third Faretta motion on August 16, 1983. He admitted
again that he was not ready to proceed with trial. The court again denied the
motion.
The next morning, Burton presented his fourth and final request to
represent himself. The court pointed out that Burton’s prior motions had been
denied “because you have indicated to me that you are not ready to proceed with
the trial” and asked whether he had “anything new you want to add.” When
6
Clements’s case had been severed three months earlier, and Clements did
not testify at Burton’s trial.
20
Burton said he did not, the court denied the motion. The defense then rested
without calling any witnesses.
These proceedings do not support Burton’s Frierson claim. Rather, they
tend to undermine it. As we stated in the direct appeal, “it is far from clear on this
record that defendant did insist on presenting any particular defense; his comments
were mostly directed to the question whether counsel had adequately investigated.
With the exception of some impeachment evidence against Otis Clements, who
did not testify, defendant did not allege that there was a particular piece of
evidence he wanted presented that counsel refused to present, or even that he
wanted to testify himself.” (People v. Burton, supra, 48 Cal.3d at p. 857.)
Moreover, Burton does not fault his attorney in this proceeding for failing to
present evidence that Clements had tried to frame him for a different crime at the
county jail. Indeed, Burton’s statement at trial that Slick was unwilling to present
such evidence directly undermines Burton’s more general claim in this proceeding
that Slick had refused to keep him informed of his intended trial strategy.
Burton’s failure to inform the court of any conflict over the presentation of other
defenses suggests that no such conflict existed. (Cf. People v. Carter (2005) 36
Cal.4th 1114, 1199.)
We note further that Burton was aware, at the time of his fourth Faretta
motion, that Slick had not put on any alibi witnesses (and, in addition, that Slick
had not called eyewitness Michael Stewart)—yet Burton failed to mention his
disagreement with this strategy when the court asked him whether he had anything
new to add to his complaints. Nor did Burton renew his Faretta motion when
Slick immediately thereafter announced in open court that the defense was resting
without calling any witnesses or otherwise complain that Slick was failing to
present his desired defense. Burton’s lack of response is inconsistent with his
21
claim that he had been ignorant of Slick’s trial strategy until the time the defense
rested.
Burton’s effort to turn this omission to his advantage is unconvincing.
Burton reasons that Slick could have foreshortened the trial court’s consideration
of the Faretta motions by explaining to the court at the outset that he had decided
not to present a guilt phase defense, and hypothesizes that Slick was unwilling to
bring the conflict to the court’s attention. We are not necessarily convinced that
either the trial court or Slick would have understood that a discussion of Slick’s
intended trial strategy would be an appropriate response to Burton’s disjointed and
wide-ranging complaints during the Faretta hearings. It does seem reasonable to
conclude, though, that Slick would have apprised the court of any conflict with his
client concerning his intended trial strategy had one existed because, at the time of
trial, Slick (like defense counsel in Frierson) believed that the attorney had the
right to resolve such conflicts. (Cf. Frierson, supra, 39 Cal.3d at pp. 810-811
[defense counsel disclosed the existence of a conflict in strategy following the
defendant’s request for a new attorney].) Slick thus would have perceived no need
to keep such a conflict secret had one existed.
However, Slick likely would have been reticent to inform the court that, as
the referee found, Burton invoked and continued to invoke Faretta solely in order
to delay the trial. According to Slick, Burton consistently said on multiple
occasions that he was not ready to go to trial, but never offered Slick a reason for a
delay. In Slick’s experience, it is not unusual for defendants to prefer to delay trial
and to give the appearance of being able to “wait it out,” and he believed that
Burton, who was facing a capital trial, was such a defendant. Burton thus errs in
contending that “the only reasonable inference to be drawn” from his Faretta
motions is that he “wanted to defend against the state’s case.”
22
Slick’s assessment of Burton’s motivation was corroborated by other
evidence at the hearing. Kleinbauer testified that Burton had told her he was not
ready to go to trial and that he was dissatisfied with Slick because “the trial
seemed to be . . . rushing forward.” As a result, Kleinbauer had consulted with
another lawyer, Jeffrey Brodey, who had recommended that Burton invoke his
right to self-representation if he was not ready for trial and that he not settle for
cocounsel status. Tellingly, Kleinbauer’s notes of this conversation nowhere
mention Burton’s alleged desire to present a defense but say instead “tell Ron he’s
not ready for trial. July 25 too soon—next year some time.” Kleinbauer further
stated in a 1993 declaration that she had instructed Burton to tell Slick “that he
was not ready for trial, and that the trial should take place next year some time,
after all the investigation was done.” Kleinbauer herself also felt the case “went to
trial maybe sooner than it should have.”
Burton’s conduct and statements further confirmed his interest in delay.
Burton engaged in “game playing” with Dr. Michael Maloney, who had been
retained by Slick to conduct a psychological evaluation of Burton. This lack of
cooperation is fully consistent with a defendant who was interested in delay for
delay’s sake—a conclusion additionally supported by Burton’s observation in his
declaration in support of his motion for new trial that “[i]n my experience in the
Los Angeles County Jail, persons with death penalty cases all tended to have their
cases continued for longer periods of time.” Finally, we note that even the trial
court seemed aware of Burton’s motivation, advising him during the second
Faretta motion hearing “that the trial is going to go ahead. [¶] I know you don’t
like the idea, but that’s the idea.” We therefore accept the referee’s finding that
Burton’s Faretta motions reflected a dissatisfaction with Slick’s failure to delay
the trial, not a dissatisfaction with Slick’s trial strategy.
23
Burton offers next the testimony of Jeffrey Brodey, who had offered advice
to his friend Kleinbauer about Faretta and who subsequently represented Burton
in connection with his motion for new trial. According to Brodey, Burton
complained that Slick had not called any witnesses, had failed to visit, had
expressed his opinion Burton was guilty, and seemed not to be interested in the
case. Brodey further testified that Burton said he had told Slick he wanted to
present a defense to the charges and call witnesses. Brodey also interviewed Slick
and said Slick had admitted that Burton wanted to put on a defense and that he had
nonetheless overruled his client’s wishes because he believed the defense would
not work. Slick, however, denied telling Brodey that Burton had said he wanted to
present defense witnesses.
As the referee found, there are a number of reasons to question Brodey’s
testimony. First, Brodey had no notes of his interview with Slick and therefore
had to rely only on his memory of a single conversation nearly 20 years earlier.
Second, the declaration Brodey prepared on Burton’s behalf does not mention
Burton’s desire to present a defense or Slick’s disregard of his client’s wishes.
Although Frierson had not yet been decided at the time of the new trial motion,
Brodey conceded at the reference hearing that Slick’s alleged refusal to accede to
a client’s stated demand to present a defense and to call particular witnesses would
have been useful to include in the claim for ineffective assistance of counsel that
was raised in the motion and was “significant” evidence for such a motion.7
7
Burton’s declaration in support of the motion for new trial, which was
prepared by Brodey, did recite that Burton knew “from our investigator that a
witness had been located who gave a different description of the person who did
the shooting of MR. AND MRS. KHWAJA, and I wanted to know why that
witness had not been subp[o]enaed to come to court.” The declaration, however,
does not indicate whether Burton expressed his concern to Slick or to anyone else
and, if he did, when he did so. Nor does it indicate whether Burton was provided
(footnote continued on next page)
24
Brodey offered no explanation at the hearing for failing to include these facts in
Burton’s declaration in support of the new trial motion, other than to say that the
declaration was very poorly prepared. But “[s]elf-proclaimed inadequacies on the
part of trial counsel in aid of a client . . . are not persuasive.” (People v. Beagle
(1972) 6 Cal.3d 441, 457.) One might further question Brodey’s recollection on
this point, inasmuch as Burton himself testified that he did not tell Brodey that
Slick failed to call the witnesses or present the defenses he had told Slick he
wanted.8 We therefore accept the referee’s finding that Brodey’s testimony was
entitled to little weight.
The referee also accorded little weight to the testimony of L. Marshall
Smith, who represented Burton on appeal as well as in his first state habeas corpus
proceeding and continues to represent Burton in his federal habeas corpus
proceeding. Smith claimed that Slick, during an interview with Smith and
(footnote continued from previous page)
an answer to his concern and, if so, whether he found the answer satisfactory.
Indeed, the declaration does not indicate that Burton actually wanted the witness
to testify, only that he wanted to know why the witness had not been called. In
short, the declaration, even assuming its truth, provides scant support for Burton’s
Frierson claim—although it does, once again, imply that Burton was kept abreast
of developments in the case, including Slick’s trial strategy.
We note also that the parties have engaged in a lively dispute as to the
identity of the witness mentioned in the declaration. Burton’s counsel asserts that
the declaration refers to Michael Stewart; the Attorney General asserts that it must
refer to Susana Camacho. Our determination that Burton failed to establish the
first prong of a Frierson claim makes it unnecessary to resolve the conflict.
8
Burton further testified that he had been aware the declaration Brodey
prepared for the new trial motion omitted the discussions he had with Slick
concerning his desire to present a defense but that he never pointed out the
omission to Brodey.
25
Attorney Samuel Jackson in December 1985, admitted that Burton had wanted to
call witnesses in his defense. However, Smith did not take any notes during this
interview—although he agreed that it would have been sound practice to
document such a statement. Twenty-two months later, Smith drafted a declaration
for Slick based on his recollection of his interviews with Slick and Burton and
asked Slick to sign it and return it “[i]f you find that it accurately reflects the
circumstances . . . .” Slick declined to sign the declaration because it was not
accurate, but it was this declaration (prepared without the assistance of any notes)
that was used to refresh Smith’s recollection as to whether Slick ever said Burton
had wanted to present defense witnesses. Slick, for his part, testified at the
reference hearing that he never said to Smith or Jackson that Burton had wanted to
present defense witnesses.9
The referee, who observed both witnesses testify, concluded that Smith,
who continues to represent Burton in federal court, had the demeanor “of an
advocate for his client” and that Smith’s recollection of Slick’s alleged statement
was entitled to little weight. We agree with the referee’s assessment.
Finally, Burton faults the referee’s report for failing to state that Slick was
biased against Burton. He focuses in particular on Slick’s testimony at the
hearing, in which Slick said that he feels he is being targeted as the reason Burton
is facing a judgment of death and “view[s] [him]self as the now defendant.” It is,
of course, beyond dispute that Slick’s conduct during the representation is under
9
Smith also testified that Kleinbauer had told him Burton had expressed to
Slick his desire to present an alibi defense. However, there is no reference to this
alleged desire in Kleinbauer’s declaration in support of the habeas corpus petition
Smith filed on Burton’s behalf, which raised a Frierson claim, and Smith admitted
that he would have wanted the petition to include the most “powerful” information
available.
26
scrutiny in this proceeding. The referee was aware of the situation and, indeed,
included this portion of Slick’s testimony in his report. But the fact that Slick was
an interested party does not necessarily undermine his credibility, especially when
he explained the basis for his perception that he was the defendant in this
proceeding: Although he had been open and forthright with current state habeas
corpus counsel from the beginning, they had asked him to sign a declaration that
was not accurate and had “pounded” on him for not giving an immediate response.
We are also aware, as was the referee, that many of the witnesses who testified at
the reference hearing had previously or were currently representing Burton and
thus had an interest in advancing his claim. Most importantly, Burton himself had
an obvious interest in the proceeding, and any evaluation of his testimony had to
consider that bias as well as his prior criminal conduct—a residential burglary in
1977, an attempted robbery in 1978, an attempted robbery in 1979, and another
burglary in 1982.
Thus, after a full and careful review of the record, we agree with the referee
that Burton failed to rebut, by a preponderance of the evidence, Slick’s testimony
that he had discussed his trial strategy at the guilt phase with Burton and that
Burton did not object to it. The record shows that while Burton steadfastly
maintained his innocence throughout and denied making a confession to police, he
never expressed a desire to Slick that any particular defense be presented—other
than a defense based on Clements’s alleged pattern of framing him for violent
crimes. Burton instead seemed focused on investigating all possible avenues of
defense, including defenses of alibi and mistaken identification, but clearly and
openly expressed a desire only that all of these investigations be completed before
trial. Frierson, however, does not require that an attorney defer to a client’s
wishes as to the scope or duration of pretrial investigation. The reasonableness of
the attorney’s investigation is an issue of ineffective assistance of counsel (see
27
Wiggins v. Smith (2003) 539 U.S. 510, 521-522) and, as the parties concede,
beyond the scope of the order to show cause.
Additionally, we reiterate that a defendant must clearly and openly—and,
thus, unequivocally—express a desire to present a particular defense in order to
establish a violation of Frierson. It is by no means uncommon for a capital
defendant to make protestations of innocence during interviews with defense
counsel or investigators, nor is it unusual for a capital defendant to suggest during
an interview that certain evidence or witnesses may merit further investigation.
But unless the defendant clearly, openly, and unequivocally requests that a
particular defense be presented, it is for counsel to assess the value of the
evidence, witnesses, and theories identified by the defendant and to decide
whether to offer a guilt phase defense. This straightforward rule protects both the
defendant and the integrity of the trial. If defense counsel must guess whether a
defendant’s statements and conduct constitute a request to present a defense, then
counsel will likely err on the side of presenting the defense—notwithstanding
counsel’s justifiable doubts as to the wisdom of pursuing such a strategy and even
though the defendant had intended merely to express curiosity about a possible
defense. In such circumstances, the defendant will be erroneously deprived of
counsel’s best judgment as to strategy, thereby diminishing the quality and value
of counsel’s assistance. Furthermore, clever defendants could rely on equivocal
requests, whether granted or denied, as a ground for reversal on appeal. (Cf.
People v. Roldan (2005) 35 Cal.4th 646, 683-684 [discussing equivocal Faretta
requests].) A clear, open, and unequivocal request, on the other hand, provides
counsel with the necessary signal of the defendant’s wishes concerning his or her
defense and reduces the likelihood of extensive after-the-fact debate as to what
those wishes might have been.
28
In short, it not sufficient for a defendant merely to proclaim his or her
innocence or to suggest that certain avenues of inquiry merit further investigation.
For purposes of a Frierson claim, the defendant must—as a first step—clearly,
openly, and unequivocally request that a defense be presented at the guilt phase.
The defendant must then show that there was some credible evidence to support
the particular defense he or she requested.
The view of the dissent that Burton clearly and openly expressed his desire
to present a defense rests on its repeated assertion that Burton had “reacted
negatively” to Slick’s decision not to present a defense and that thereafter this
strategic “issue” was “ ‘always there’ between them.” (Dis. opn., post, at p. 5.)
The dissent has misapprehended the record, which reveals that Burton reacted
negatively to Slick’s statement, early on in the representation, that the prosecution
had “an extremely strong case” with respect to identity. It was only later, after
considering the strength of the prosecution case, consulting with other attorneys,
and wrestling with how best to defend Burton, that Slick decided not to present a
guilt phase defense and so informed Burton. Neither Burton nor Slick testified
that Burton reacted negatively to this strategic decision—in fact, Slick testified
repeatedly that Burton “did never one time object or tell me that, no, I don’t want
you to do this.” The record likewise does not support the dissent’s repeated
assertion that Slick’s intended strategy created an “issue” that came “between”
him and his client. (Dis. opn., post, at pp. 1, 3, 4, 5, 12.) In particular, neither
Slick nor Burton made such a claim at the hearing. Slick testified instead that
while he could not recall the precise date when he informed Burton of his intended
strategy, he was “sure” he had done so, since the “topic” came up “more than one
time.”
The dissent also misapprehends a defendant’s burden in establishing a
Frierson claim. The issue is not, as the dissent suggests, whether Slick could have
29
“reasonably understood petitioner’s comments as indicating agreement with an
immediate no-defense trial.” (Dis. opn., post, at p. 13, italics omitted.) As
demonstrated above, Burton plainly was dissatisfied with the imminent approach
of his capital trial, and Slick was aware of the fact his client was dissatisfied. But,
as recounted above, Burton expressed dissatisfaction clearly and openly with the
strength of the prosecution case, with the speed at which he was brought to trial,
and with the general predicament in which he found himself—not with his
attorney’s failure to offer the guilt phase defense he has now identified.
Because we find that Burton did not clearly, openly, and unequivocally
express a desire to present a guilt phase defense, and Slick therefore did not
override Burton’s clearly expressed desire to do so, the Frierson claim must be
rejected.
B. Whether the Reference Hearing Was Fair and Adequate
We have already discussed and disposed of many of Burton’s exceptions to
the referee’s report as well as his objections to the conduct of the hearing in the
preceding section. Burton’s remaining exceptions and objections likewise lack
merit.
Burton argues first that the referee erred in refusing to designate Slick a
hostile witness, which precluded counsel from conducting Slick’s examination
with leading questions. (Evid. Code, § 767.) The referee had broad discretion to
decide whether, under the circumstances, Slick should have been declared a
hostile witness. (People v. Williams (1997) 16 Cal.4th 635, 672.) We need not
decide whether an abuse of that discretion occurred, however, because Burton
does not claim that he was precluded from introducing any evidence by the
limitation of the examination to nonleading questions or that he was prejudiced in
any other way.
30
Burton objects next that the referee discounted Brodey’s and Smith’s
testimony that Slick had admitted overriding his client’s desire to present a
defense because neither one had contemporaneous notes of the interview, but did
not discount Slick’s testimony, even though he too failed to take notes of the
interview. As the Attorney General points out, though, Brodey and Smith each
met with Slick for the purpose of developing information to support further
litigation on Burton’s behalf; the motion for new trial, in Brodey’s case, and the
direct appeal and habeas corpus petition, in Smith’s case. It would thus be
reasonable to expect Brodey and Smith to take notes of any useful facts elicited in
the interview. Slick, by contrast, had no similar reason to document his
conversation with either attorney or, indeed, to take notes of his own oral
statements. The referee thus properly took account of the fact that Brodey’s
testimony about Slick’s statements was based not on his notes but simply on his
recollection of an interview nearly 20 years earlier and that Smith, similarly
without notes, did not begin to prepare a declaration purporting to recount Slick’s
statements until 22 months after their interview.
Finally, Burton points out, correctly, that the referee erred in relying on
exhibits that had not been admitted into evidence. In discussing Slick’s belief that
Burton’s four Faretta motions had been based not on his dissatisfaction with
Slick’s trial strategy but instead on his desire to delay the trial, the referee cited at
one point to Slick’s 1987 declaration, in which Slick said that Burton had “wanted
a delay because he was not ready to go to trial” and explained “that what he meant
was that he was not emotionally ready to go to trial at the time,” and to Slick’s
1998 declaration, in which Slick said that the reason Burton provided for his
Faretta motion “was that he wanted a delay because he was not ready to go to
trial.” We agree with Burton that the referee erred in citing these declarations, in
that neither declaration had been admitted into evidence, but the error was plainly
31
harmless, in that Slick also testified at the hearing that he believed Burton’s
Faretta motions were an attempt to delay the trial.
DISPOSITION
Our order to show cause was limited to the claim that Burton was denied
his right to present a defense under Frierson. Burton’s other claims and his
petition for writ of habeas corpus will be resolved by a separate order, as is our
practice. (See In re Freeman, supra, 38 Cal.4th at p. 652.) The order to show
cause is discharged.
BAXTER, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
CHIN, J.
CORRIGAN, J.
32
DISSENTING OPINION BY WERDEGAR, J.
In this case we are concerned not with petitioner’s guilt or innocence or
with the competence of his counsel, but with petitioner’s fundamental
constitutional right to put on a defense at trial.
The majority holds petitioner was not denied this fundamental
constitutional right. I respectfully dissent. In my view, a defendant who has
repeatedly told his attorney he did not commit the crime and wants to contest the
charges; who has asserted his confession was false; who has provided the attorney,
through the defense investigator, with names of alibi witnesses and eyewitnesses
to support his innocence claim; who has responded negatively to his attorney’s
suggestion that the guilt phase trial could not be won, thereby creating an issue of
strategy that the attorney acknowledges was constantly present between them; and
who before trial moved four times to have the attorney relieved, complaining in
open court, with the attorney present, that the attorney had accepted the
prosecution allegations as incontestable and had no interest in investigating the
defendant’s alibi, is a defendant who has “clearly expressed [his] desire to present
a defense” at the guilt phase of trial.” (People v. Frierson (1985) 39 Cal.3d 803,
815 (Frierson).)
In Frierson, we held that a criminal defense attorney’s ordinary authority to
decide strategy and tactics does not extend, in a capital case, to the fundamental
decision of whether to attempt a defense to guilt or reserve the defense efforts for
1
the penalty phase. We agreed with the defendant that “the decision whether to
present any defense at all at the guilt/special circumstance phase of a capital case
is so fundamental, and has such serious consequences for a defendant, that it is one
that cannot properly be taken from him by his counsel.” (Frierson, supra, 39
Cal.3d at p. 812.) In light of that principle, this court concluded, “we do not think
counsel could properly refuse to honor defendant’s clearly expressed desire to
present a defense.” (Id. at p. 815.)
Neither Frierson nor our more recent cases discussing this principle
articulate how “clearly” or “openly” (People v. Milner (1988) 45 Cal.3d 227, 246)
the defendant’s objection to his attorney’s no-defense strategy must be expressed.
But as the attorney’s obligation is to refrain from “overrid[ing] defendant’s
decision to present a defense” (Frierson, supra, 39 Cal.3d at p. 817, fn. 7), the
principle logically applies whenever defense counsel would reasonably know,
from the defendant’s statements understood in light of the circumstances known to
counsel, that the defendant has decided in favor of presenting a defense. At oral
argument in this case, both parties agreed with this “reasonable trial attorney”
standard.1
1
The majority (ante, at p. 10) cites People v. Bradford (1997) 15 Cal.4th
1229, 1332, as holding that Frierson applies only in the case of an “express”
conflict between the defendant and his or her attorney. Both the discussion in
Bradford and the footnote in Frierson on which it draws (Frierson, supra, 39
Cal.3d at p. 818, fn. 8), however, concern the trial court’s obligation to inquire or
advise the defendant regarding his or her right to testify or to put on a defense, not
counsel’s obligation to refrain from overriding a decision by the defendant that has
been clearly conveyed to counsel. (See People v. Burton (1989) 48 Cal.3d 843,
858 [“Indeed, in Frierson itself we emphasized that in the absence of an explicit
indication of a conflict over whether to present a defense, the court has no duty to
inquire into the defendant’s concurrence with his attorney’s actions”].)
2
The present habeas corpus record shows that from the statements petitioner
made in open court with his attorney, Ron Slick, present―understood in light of
the circumstances known to Slick―no reasonable attorney in Slick’s position
could have failed to understand that petitioner opposed Slick’s strategy of
presenting no defense to the charges. I discuss this evidence in detail below.
In an undated letter, apparently written soon after Slick’s appointment,
petitioner informed Slick of his insistence he was innocent, his belief he was being
framed, and his expectation of being exonerated at trial. From the subsequent
report of his investigator, Kristina Kleinbauer, Slick learned petitioner had
provided the investigator with a detailed alibi and the names of pertinent
witnesses, some of whom Kleinbauer had interviewed. Slick testified that on
review of the prosecution’s likely evidence and investigation of the potential
defense witnesses (which included misidentification as well as alibi witnesses) he
determined the defense of innocence would not persuade a jury and was not
strategically smart, and he “believe[d]” that he so informed petitioner. Slick
further testified he “can’t tell [petitioner’s current attorney]” what petitioner’s
reaction was to this information about his strategic choice. However, he did
remember that when he told petitioner “we’re going to lose the thing” (apparently
referring to the guilt phase trial), petitioner reacted negatively, becoming
uncooperative; after that the two never had a “good conversation.” Although Slick
had made no notes of their discussions and could not remember when or how
many times they discussed the issue of a guilt phase defense, the issue was, in his
words, “always there” between him and petitioner.
With that factual background―all of it known to Slick―petitioner’s in-
court comments clearly expressed his opposition to Slick’s no-defense strategy.
3
Though petitioner, as he had been advised, framed his complaints within a
repeated request for self-representation,2 Slick could not reasonably have failed to
understand that petitioner continued to object to his chosen strategy; the issue that
was “always there” between them clearly had not disappeared.
In court, shortly before jury selection, petitioner began by complaining
Slick had shown a “lack of interest as far as the investigation is concerned”
because “it is not worth it to him,” though petitioner insisted that “to me it is worth
it” because “I don’t want to take the fall for the real person in this crime.” The
next day, petitioner explained that the investigation he had seen did not reflect “the
realness about my alibi.” Slick, petitioner asserted, “don’t want to inform the
court and let the people see” that petitioner was being framed and that he was “not
the person who should be takin’ the fall.” Petitioner accused Slick of disloyalty
(he and the district attorney “is up to somethin’ ”); as evidence, petitioner
observed that Slick continued to articulate only the prosecution version of events:
“I see Ron Slick every time I come to the court and I am tellin’ him the real, but
all I am gettin’ is the fake, the frame. And I know for sure that I shouldn’t take the
fall in this case.” Petitioner recounted Slick’s having told him, in a brief meeting
at the county jail, “ ‘I don’t think you are going to win this case and there is
nothing I can do about it.’ ” Petitioner then expressly, clearly and succinctly
indicated his continued dissatisfaction with this approach: “I don’t need a lawyer
like that.”
2
According to Kleinbauer’s uncontradicted account, she (relying on advice
from an attorney with whom she was acquainted) had recommended a motion for
self-representation as the best way for petitioner to get the court’s attention for his
complaints about Slick’s approach to the case.
4
In short, on the first two days of trial Slick heard petitioner say, in court,
that he was innocent; that he had told his lawyer so, but his lawyer did not believe
him and did not consider the case worth his time; that the lawyer consequently had
not truly investigated the case, including petitioner’s alibi; that the lawyer
repeatedly displayed his disloyalty by echoing the prosecution version of the facts
and by refusing to bring the truth out in court; that the lawyer had told him they
could not win the case and there was nothing the lawyer could do; and, finally,
that petitioner preferred going to trial without a lawyer to being represented by a
lawyer who took for granted petitioner’s conviction. Slick heard all this while
knowing, consistent with it, that he had indeed told petitioner they could not win at
the guilt phase and he did not intend to put on a defense, that petitioner had
reacted negatively, and that the issue had remained “always there” between them.
Given their past conversations, I am at a loss to comprehend how Slick could
reasonably have understood petitioner’s in-court comments to reflect agreement
with his planned no-defense strategy. To the contrary, they could reasonably have
been understood only as a clear statement that petitioner had not acceded to
Slick’s strategic plan.
The majority insists that the issue Slick testified was “always there”
between him and his client was not whether Slick should forgo a guilt phase
defense, but only whether the defense had any chance of success in light of the
strong prosecution case on guilt. The record does not support the majority’s view.
Slick testified expressly that his decision not to call guilt phase witnesses was a
“topic” that “came up more than one time” and indeed was “always there”
between him and petitioner.3 And while Slick stated he “struggled” with whether
3
Slick’s testimony, on questioning by petitioner’s attorney, was as follows:
“Q: Did you tell petitioner at any point in time that you were not going to call any
(footnote continued on next page)
5
or not to call witnesses, the record does not support the majority’s claim that the
decision not to do so came later than, and was separate from, Slick’s determination
that the People’s case on guilt could not be effectively opposed. (Maj. opn., ante,
at p. 29.) Slick testified the two points were linked in his thinking about the case.4
Indeed, the strength of the People’s case was, according to Slick, the “reason” for
his strategic choice not to present a defense.5 Moreover, Slick was unable to recall
when he told petitioner of his strategic decision, including whether it was before or
after receiving the results of the defense investigator’s work. (See fn. 3, ante.)
(footnote continued from previous page)
witnesses at the guilt phase? [¶] A: I’m sure I did. [¶] Q: Okay. And, again, we
don’t have any notes that would help us pin down the time. [¶] A: Correct.
[¶] Q: And we don’t know whether or not you told him this before or after the
investigation by Ms. Kleinbauer was received? [¶] A: Correct. The topic, I’m
sure, came up more than one time. The topic was a―was always there.” (Italics
added.)
4
“Q [by petitioner’s attorney]: And did your assessment of the
prosecution’s case play a part in your decision not to put on any of the witnesses
that are mentioned in the report . . . ? [¶] A: Yes.”
The link between these topics was apparently so strong that Slick
sometimes conflated them. Asked by petitioner’s attorney to recall petitioner’s
“reaction . . . to your informing him of your intending not to call witnesses or put
on a guilt-phase defense,” Slick answered he recalled only petitioner’s “reaction
. . . in general during the entire time I represented him.” Following up, the
attorney asked Slick to describe petitioner’s “response to your defense during the
whole time you represented him.” Slick answered by recounting his having told
petitioner that they were “going to lose” the guilt trial and petitioner having
reacted negatively.
5
“The Court [Referee]: You indicated that your assessment of the case in
1983, as best as you can reconstruct it, was that the People had a strong case.
[¶] The Witness: Yes. [¶] The Court: And for that reason, you decided that the
strategic choice that would best suit your client, Mr. Burton, would be to put on a
defense at the penalty phase instead of the guilt phase. [¶] The Witness: Yes.”
6
The majority’s view that while preparing for trial Slick and petitioner were in
conflict only over the strength of the prosecution case, and that only later did the
two discuss trial strategy, is thus contradicted in several respects by Slick’s own
testimony.
The referee found Slick had reason to understand petitioner’s in-court
remarks as intended only to delay trial, rather than reflecting dissatisfaction with
Slick’s intended trial strategy. The majority accepts this assessment. (Maj. opn.,
ante, at p. 23.) In contrast, I would reject this finding as plainly inconsistent with
the trial record. While petitioner certainly indicated in connection with his four
Faretta6 motions on August 10 through 17 that he was not ready to go to trial in
propria persona and did not believe the defense case had yet been fully
investigated, to read his comments as reflecting only a desire to delay trial,
unrelated to any concern over the nature and quality of the representation Slick
was providing, is objectively unreasonable. As discussed above, petitioner clearly
and repeatedly stated that he wanted to dismiss his attorney because Slick was
committed to the prosecution version of events and therefore would not defend
him properly. Slick, who knew he had told petitioner they could not win the guilt
phase, who knew that petitioner had objected, and who acknowledged that from
that point on the issue of whether to defend was “always there” when he talked to
petitioner, could not have failed to understand the dissatisfaction with his trial
strategy expressed in petitioner’s Faretta-hearing comments.
The majority reasons that Slick’s failure to inform the trial court, during the
Faretta hearings, of a conflict with his client over strategy tends to show that no
such conflict existed. (Maj. opn., ante, at p. 22.) As the majority points out, the
6
Faretta v. California (1975) 422 U.S. 806.
7
defense attorney in Frierson conscientiously disclosed the existence of a conflict
when Frierson asked for a new attorney. (Frierson, supra, 39 Cal.3d at pp. 810-
811.)
But Frierson’s attorney was not Ron Slick. Slick’s performance as counsel
in this case suggests he was less concerned with assuring petitioner zealous
representation than with expeditiously concluding the trial. His no-defense
strategy, for example, went beyond declining to call witnesses in the guilt phase
trial; Slick also made no meaningful argument to the jury against conviction on all
charges. Instead, he simply shared some very brief (four transcript pages long)
thoughts about reasonable doubt in general, making absolutely no reference to the
facts or evidence in the case. He urged the jury to “pile the evidence up” and see
whether it could be viewed as showing petitioner not to be guilty. “But see if you
can do that. And if you can’t do that, so be it. You can’t do it.” He made no
effort whatsoever to even so much as suggest how the evidence could be viewed to
reach a not guilty verdict; indeed, he did not discuss the evidence at all. While a
desire to maintain credibility with the jury may justify counsel’s forgoing the
presentation of a vigorous guilt phase defense of misidentification and alibi, it is
difficult to see how merely pointing to the weaker points of the prosecution case
and urging the jury to consider whether that evidence raises reasonable doubts
risks a loss of credibility with the jury.
Moreover, having effectively admitted his client’s guilt in order, as he
asserts, to retain credibility for the penalty phase, Slick actually presented only the
bare minimum of a defense on penalty. He called petitioner’s mother, who
testified that she had had difficulty providing for her nine children, that
petitioner’s father had died when petitioner was five, that petitioner was well
behaved at home and got along with his siblings but got into trouble at school for
fighting, and that she loved petitioner. The only other defense witness was a
8
deputy sheriff from the Los Angeles County jail who testified that petitioner was a
backup trusty on his cell row and, as far as the witness knew, had not been
involved in any negative incidents at the jail. Slick did not investigate or present
to the jury any information regarding petitioner’s neglectful and abusive family
background, even though several members of petitioner’s family were prepared to
testify to the violence, alcoholism and drug use rampant in petitioner’s childhood
environment. The defense investigator, whom Slick had initially directed to
interview petitioner’s family members, had not yet done so when she learned that
Slick had already taken petitioner to trial, conviction and a death sentence. (The
entire trial, guilt, special circumstances and penalty phases together, was
conducted over portions of four days; the proceedings occupy only one volume
(348 pages) of reporter’s transcript.) This record does not suggest Slick was such
a conscientious guardian of his client’s interests that, like counsel in Frierson, he
would voluntarily reveal to the court petitioner’s dissatisfaction with his chosen
strategy.7
7
In these respects, Slick’s performance was of a piece with his
representation of other capital and noncapital murder defendants, which has been
deemed incompetent in several cases. Representing Robert Paul Wilson on capital
murder charges, Slick failed to object to admission of conversations with a
government agent that constituted “the strongest evidence” against Wilson. (In re
Wilson (1992) 3 Cal.4th 945, 957.) On habeas corpus, we determined that this
failure “was not based on an informed and considered tactical determination but
resulted instead from ignorance or an erroneous interpretation” of precedent. (Id.
at p. 955.) Representing Paul Tuilaepa on capital murder charges, Slick failed to
present available evidence that an accomplice, rather than Tuilaepa, was the
gunman and did not object to having his client shackled during trial. (People v.
Tuilaepa (1992) 4 Cal.4th 569, 582-586; Rohrlich, The Case of the Speedy
Attorney, L.A. Times (Sept. 26, 1991) p. A1.) On automatic appeal, the majority
in this court held only that Tuilaepa had not shown Slick’s decision not to
challenge his shackling was prejudicial (Tuilaepa, at pp. 583-584), but Justice
Mosk added that “counsel’s performance . . . failed to satisfy an objective standard
(footnote continued on next page)
9
The majority views the Frierson issue as turning on a credibility contest
between Slick and petitioner―or, more exactly, between Slick, on the one hand,
and petitioner, petitioner’s two later attorneys and the defense trial investigator, on
the other. In particular, the majority, like the referee, focuses on the question
whether the evidence at the hearing shows petitioner objected, during pretrial
private meetings with Slick, to Slick’s intended no-defense strategy. (See maj.
opn., ante, at pp. 12-18, 24-26.) But in my view no such credibility contest need
be resolved, because petitioner’s on the record remarks at trial, understood in light
of circumstances admittedly known to Slick, clearly articulated petitioner’s
disagreement with Slick’s no-defense strategy. Nevertheless, I note two
significant reasons for doubting Slick’s credibility as to the details of his
interactions with petitioner. First, Slick understood that his performance as trial
counsel was under significant scrutiny in these proceedings; indeed, he admitted
he felt he was the “defendant” here. Second, while he generally disclaimed any
memory about most events of the period, he simultaneously professed the ability
(footnote continued from previous page)
of professional reasonableness” (id. at p. 596 (conc. opn. of Mosk, J.)).
Representing Robert Glover on noncapital murder charges, Slick gave his client
what the trial court characterized as “a shabby defense,” in particular by failing to
call available exculpatory witnesses. In an unpublished decision included in the
present habeas corpus record, the Court of Appeal affirmed the trial court’s grant
of a new trial on grounds of Slick’s ineffective assistance of counsel. These
practices have, to Slick’s critics at least, made his name virtually a byword for
haste and indifference. (See Mintz, Lawyer Noted for Speedy Defense, S.J.
Mercury News (Apr. 22, 2002) p. A12; Barbieri, Death Row Suicide Puts Trial
Counsel on Spot, S.F. Recorder (July 22, 1992) p. 1; Rohrlich, The Case of the
Speedy Attorney, L.A. Times, supra, at p. A1.)
10
to remember certain details favorable to his version of events.8 Together with the
long passage of time since the events in question and the absence of recordings or
notes of the private conversations between attorney and client, the evident bias of
both petitioner and Slick militates in favor of resolving this case primarily by
reference to practically the only thing that is certain: petitioner’s on the record
remarks at the Faretta hearings.
The majority, quoting dictum from our decision in petitioner’s automatic
appeal, reasons that in his Faretta hearing comments petitioner did not “ ‘insist on
presenting any particular defense’ ” or “ ‘allege that there was a particular piece of
evidence he wanted presented that counsel refused to present.’ ” (Maj. opn., ante,
at p. 21.) Given what we now know from the habeas corpus record, I disagree that
Slick could reasonably have dismissed petitioner’s explanation of his desires as
insufficiently specific. Again, Slick knew not only that petitioner maintained his
innocence of the shootings, but that he had provided the defense investigator with
alibi witnesses. Slick was also aware the investigator had interviewed other
witnesses who might have cast doubt on the eyewitness identifications. How
Slick, other than through willful blindness, could have failed to understand
petitioner’s in-court insistence that his lawyer should present “the realness about
my alibi” and “inform the court and let the people see” that petitioner was “not the
person who should be takin’ the fall” as not referring to a defense of innocence,
including at least the presentation of alibi witnesses, is incomprehensible.
8
When Slick was asked how he could remember specifically that petitioner
never said he wanted Slick to call the alibi witnesses Kleinbauer interviewed,
when he was unable to recall other events even after his memory was refreshed
with records, Slick responded, implausibly, that “it’s easier to remember
something that didn’t happen than something that did.”
11
To the extent the majority implies that Frierson required petitioner to use
correct legal labels or to state in open court the exact parameters of the defense he
wanted presented, I disagree. Petitioner was a poorly educated 20 year old whose
verbal IQ has been measured as 74, in the borderline mentally retarded range.
Moreover, even if he were of exceptional intelligence and trained in the law, he
could not have known of his right to demand that a guilt phase defense be
presented, as at the time of his trial that right had not yet been recognized by
Frierson. I would not hold Frierson requires greater specificity of petitioner
under these circumstances.
I agree with the majority (ante, at p. 28) that a general “protestation[] of
innocence” during an interview with defense counsel should not be sufficient to
make a Frierson claim. But petitioner did much more. While petitioner
consistently maintained his innocence, i.e., that he was not responsible for killing
Gulshakar Khwaja, he also provided names of witnesses to support his alibi.9
Having privately responded negatively to Slick’s assertion that the prosecutor’s
charges could not be contested, which Slick acknowledged created an issue that
was “always there” between attorney and client, petitioner then repeatedly
renewed his objections in court up to and during the trial itself.
Nor does the fact petitioner complained, inter alia, of inadequate
investigation (maj. opn., ante, at p. 27) tend to negate his claim. His disagreement
with Slick’s intended course of going to trial immediately with no defense to the
charges was no less clear simply because he expressed himself in terms of the
belief his defense had not yet been fully investigated. Slick could, perhaps, have
9
In that sense, petitioner did specify the “particular defense” (maj. opn.,
ante, at p. 21) he wanted presented: noninvolvement in the killing, as opposed, for
example, to self-defense, provocation, or lack of the alleged mental state.
12
believed from petitioner’s in-court comments that petitioner would prefer further
investigation to an immediate trial with only the defense witnesses who had
already been interviewed (though in fact Slick professes to believe simply that
petitioner wanted to delay the trial for emotional reasons). In no way, however,
could Slick have reasonably understood petitioner’s comments as indicating
agreement with an immediate no-defense trial. Petitioner’s objection to that
course should, especially given the prior dealings between them, have been amply
clear to Slick.
Because the majority concludes petitioner has not shown he clearly
expressed his desire to present an identifiable guilt phase defense, the majority
does not address whether “some credible evidence to support the defense” existed.
(Frierson, supra, 39 Cal.3d at p. 812.) Below, I briefly explain why I would find
there was some credible evidence of misidentification and alibi. In so doing, I do
not suggest this evidence would necessarily have altered the outcome, a
conclusion irrelevant to a Frierson inquiry.
Kleinbauer’s pretrial defense investigation identified three potential alibi
witnesses and two eyewitnesses (one a former police officer) whose descriptions
of the gunman were inconsistent with petitioner’s appearance. To be sure, these
witnesses’ potential testimony was open to impeachment and qualification in
various ways: the alibi witnesses bore probable biases for petitioner, and the times
at which they remembered seeing him were approximate; the eyewitnesses had
limited opportunity to observe the shooter, and, in one case, the pertinent
description did not appear in the police report of the witness’s initial interview.
But nothing about the information these witnesses could have provided was
inherently unbelievable or implausible. This is not a case in which petitioner
claims he had a right “to insist on presentation of a defense which has no credible
13
evidentiary support or on which no competent counsel would rely.” (Frierson,
supra, 39 Cal.3d at p. 815, fn. 3.)
The referee found this evidence “would not have been sufficiently credible
or probative to call into question the tactical decision of Mr. Slick to focus on the
penalty phase of the trial.” But the supportability of counsel’s tactical decision is
not the standard. To make a Frierson claim, the petitioner need not show trial
counsel acted incompetently in failing to present a defense; indeed, this court in
Frierson noted counsel there “may well have had sound reasons” for his strategic
choice. (Frierson, supra, 39 Cal.3d at p. 814.) Rather, a Frierson claim requires
only that the defense have been supported by “some credible evidence” (id. at
p. 812), evidence that was not so weak that “no competent counsel would rely” on
it (id. at p. 815, fn. 3).
At the reference hearing, Slick testified he thought alibi evidence would not
be credited in light of the full confession petitioner had made to police. Slick also
observed that he would have been hampered in any attempt to attack the
confession as fabricated by petitioner’s general disinclination to take the stand.
Without petitioner’s testimony and with no evidence of a motive for detectives to
have fabricated a confession from petitioner, Slick believed, he could not
effectively challenge the confession.
I agree the strong evidence of petitioner’s guilt, prominently including his
confession, made an acquittal unlikely even if Slick had presented a defense at
guilt phase. Frierson itself did not expressly consider the strength of the
prosecution case in concluding that credible evidence existed to support a
diminished capacity defense. (See Frierson, supra, 39 Cal.3d at pp. 814-815.)
But even assuming it is relevant, the strong prosecution evidence against petitioner
does not warrant a conclusion that “no competent counsel” (id. at p. 815, fn. 3)
would have presented a guilt phase defense in this case. The confession was not
14
recorded and, according to the police witnesses, petitioner recanted it within a few
days of making it, facts Slick could have used to argue the confession was, if not
fabricated, then partly or wholly false. (See People v. Burton, supra, 48 Cal.3d at
p. 851.) Even if, as was very likely, petitioner was nonetheless convicted, Slick
would have been in a reasonable position to argue at penalty phase for residual or
lingering doubt as a factor in mitigation. That the choice not to present a guilt
phase defense may have been a competent one does not mean the choice to present
a defense would have been incompetent.
For the reasons explained above, I would grant the petition for writ of
habeas corpus on the ground that petitioner was denied his right to present a
defense at the guilt phase trial.
WERDEGAR, J.
I CONCUR:
MORENO, J.
15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Burton on Habeas Corpus
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S034725
Date Filed: December 18, 2006
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Attorneys for Appellant:
Marcia A. Morrissey and Lisa M. Romo, under appointments by the Supreme Court, for Petitioner Andre
Burton.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Chung L. Mar, Deputy Attorneys
General, for Respondent the People.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Lisa M. Romo
2342 Shattuck Ave., PMB 112
Berkeley, CA 94704
(510) 644-2621
Chung L. Mar
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2368
2
Opinion Information
| Date: | Docket Number: |
| Mon, 12/18/2006 | S034725 |
Parties
| 1 | Burton, Andre (Petitioner) San Quentin State Prison Represented by Marcia A. Morrissey Attorney at Law 2115 Main Street Santa Monica, CA |
| 2 | Burton, Andre (Petitioner) San Quentin State Prison Represented by Lisa M. Romo Attorney at Law 2342 Shattuck Avenue, PMB 112 Berkeley, CA |
| 3 | Department Of Corrections (Non-Title Respondent) Represented by Attorney General - Los Angeles Office Chung Mar, Deputy Attorney General 300 S. Spring Street, Suite 500 Los Angeles, CA |
| Disposition | |
| Dec 18 2006 | Opinion: OSC discharged |
| Dockets | |
| Aug 30 1993 | Petition for writ of habeas corpus filed by attorney Joel W. Baruch (319 pp.) |
| Aug 30 1993 | Filed: 3 vols. of exhibits in support of petition. |
| Aug 30 1993 | Application to stay execution filed petitioner's Emergency Application for Stay of Execution (execution date: 9-23-93) |
| Aug 30 1993 | Note: the application of L. Marshall Smith, Esq. for relief from apppointment as counsel was filed this date in related automatic appeal, no. S004691. |
| Aug 31 1993 | Filed: additional proof of service from petitioner. |
| Sep 1 1993 | Informal response requested (Rule 60); due 10-1-93. Any reply due within 15 days of service and filing of response. |
| Sep 2 1993 | Stay order filed Application for stay of execution is granted and execution of the judgment of death entered against Andre Burton by the Superior Court of Los Angeles County and affirmed by this court on May 8, 1989, (People v. Burton (1989) 48 Cal.3d 843), is hereby stayed pending final determination of the petition for writ of habeas corpus filed herein. |
| Sep 8 1993 | Received: Original Declaration of Charles Gangloff (Exhibit # 61 to Petn) |
| Sep 29 1993 | Application for Extension of Time filed To file Informal Response. |
| Oct 7 1993 | Extension of Time application Granted To 11-1-93 To file Informal Response. |
| Oct 29 1993 | Application for Extension of Time filed To file Informal Response. |
| Nov 5 1993 | Extension of Time application Granted To 12-1-93 To file Informal Response. |
| Nov 30 1993 | Application for Extension of Time filed To file Informal Response. |
| Dec 3 1993 | Extension of Time application Granted To 12-16-93 To file Informal Response. |
| Dec 16 1993 | Informal Response filed (AA) (110 Pp. Excluding Exhibits) |
| Dec 28 1993 | Application for Extension of Time filed To file reply To Informal Response. |
| Jan 11 1994 | Extension of Time application Granted To 2-4-94 To file reply To Informal Response. |
| Feb 16 1994 | Application for Extension of Time filed To file Informal response |
| Feb 18 1994 | Extension of Time application Granted To 3-7-94 To file reply To Informal Response. |
| Mar 7 1994 | Reply to Informal Response filed (AA) Reply to Informal response (209 Pp.) |
| Mar 7 1994 | Filed: Declaration of L. Marshall Smith, Esq. (6 Pp.) |
| Oct 29 1997 | Order to show cause issued The Director of the Department of Corrections is ordered to show cause in this court, when the matter is placed on calendar, why the relief prayed for should not be granted on grounds that petitioner was denied the right to present a defense at the guilt phase of trial as alleged in claim XIV of the petition for writ of habeas corpus. The return shall be filed on or before 11-19-97. (votes: George C.J., Mosk, Kennard, Werdegar and Brown, JJ.) |
| Nov 6 1997 | Application for Extension of Time filed To file return To Osc. |
| Nov 10 1997 | Extension of Time application Granted To 1-20-98 To file return To Osc. |
| Nov 25 1997 | Change of Address filed for: Atty Joel W. Baruch. |
| Jan 14 1998 | Application for Extension of Time filed To file return To OSC |
| Jan 21 1998 | Extension of Time application Granted To March 19,1998 To file Respondent's return To OSC |
| Mar 16 1998 | Application for Extension of Time filed To file return To Osc. |
| Mar 18 1998 | Extension of Time application Granted To 4-20-98 To file return To Osc. |
| Apr 8 1998 | Application for Extension of Time filed To file return To Osc. |
| Apr 9 1998 | Extension of Time application Granted To 6-19-98 To file return To Osc. |
| Jun 17 1998 | Application for Extension of Time filed To file return To Osc. |
| Jun 23 1998 | Extension of Time application Granted To 7-20-98 To file Respondent's return To OSC |
| Jul 15 1998 | Application for Extension of Time filed To file Return. |
| Jul 22 1998 | Extension of Time application Granted To 8-19-98 To file Respondent's return To OSC no further Extensions of time Are Contemplated |
| Aug 14 1998 | Application for Extension of Time filed To file Return. |
| Aug 18 1998 | Extension of Time application Granted To 10-1-98 To file return To Osc. no further Extensions of time will be Granted. |
| Sep 28 1998 | Application for Extension of Time filed To file return To Osc. |
| Sep 29 1998 | Extension of Time application Denied To file return To Osc. |
| Oct 8 1998 | Filed: Request to file Late return [Respondent] |
| Oct 8 1998 | Received: Return to OSC [Respondent] |
| Oct 15 1998 | Order filed: The motion of Respondent for Relief from Default to file The return to The Order to Show Cause Is granted |
| Oct 15 1998 | Written return filed (82 Pp. Excluding Exhibits) |
| Nov 5 1998 | Application for Extension of Time filed To file Traverse. |
| Nov 10 1998 | Extension of Time application Granted To 12-14-98 To file Traverse To Return. |
| Dec 8 1998 | Filed: Notice of filing Original Declaration in support of return to Osc. |
| Dec 11 1998 | Application for Extension of Time filed To file Traverse. |
| Dec 16 1998 | Extension of Time application Granted To 1-13-98 To file Traverse |
| Jan 13 1999 | Application for Extension of Time filed To file Traverse. |
| Jan 15 1999 | Filed: Suppl Decl of Joel Baruch Re: request for Eot. |
| Jan 27 1999 | Extension of Time application Granted To 2-16-99 To file Traverse. |
| Feb 11 1999 | Application for Extension of Time filed To file Traverse. |
| Feb 18 1999 | Extension of Time application Granted To 4-19-99 To file Traverse. |
| Apr 15 1999 | Application for Extension of Time filed To file Traverse |
| Apr 19 1999 | Extension of Time application Granted To 6-18-99 To file Traverse To return To OSC |
| Jun 14 1999 | Change of Address filed for: For Petnr's Counsel. |
| Jun 15 1999 | Application for Extension of Time filed To file Traverse To Return. |
| Jun 15 1999 | Note: Habeas Funds request filed in Related A.A., No. S004691. |
| Jun 17 1999 | Filed: Amended Declaration of Atty Baruch to Extension request |
| Jun 23 1999 | Extension of Time application Granted To 8-17-99 To file Traverse To return To OSC |
| Jul 14 1999 | Note: Order filed this Date Re Habeas Funds request filed (See No. S004691). |
| Aug 13 1999 | Application for Extension of Time filed To file Traverse To Return. |
| Aug 19 1999 | Extension of Time application Granted To Serve and file Petitioner's Traverse To the return To the Order To Show Cause Is extended To and Including 10/18/99. |
| Oct 12 1999 | Application for Extension of Time filed To file Traverse To Return. |
| Oct 18 1999 | Extension of Time application Granted To 12/17/99 To Serve and file Petitioner's Traverse To the return To the Order To Show Cause. no further Extensions of time Are Contemplated. |
| Dec 15 1999 | Application for Extension of Time filed To file Traverse To Osc. |
| Dec 20 1999 | Extension of Time application Granted To 2/15/2000 To Petitioner To file Traverse To the return To the Osc. no further Extensions of time Are Contemplated. |
| Feb 14 2000 | Application for Extension of Time filed By Petitioner to file Traverse to return to Order to Show Cause. |
| Feb 18 2000 | Filed: Supplemental Declaration of Joel Baruch Re Last request for Extension of time and request for Investigative Funds - *filed Under Seal* |
| Feb 28 2000 | Extension of Time application Granted To 4/17/2000 To file Petner's Traverse To the return To the Order To Show Cause |
| Apr 3 2000 | Application for Extension of Time filed To file Traverse To return To Order To Show Cause |
| Apr 11 2000 | Extension of Time application Granted To 5/17/2000 To file Petner's Traverse To the return To the Order To Show Cause. no further Eot will be Granted. |
| May 17 2000 | Traverse to return filed (206 pages Excluding Exhibits) |
| Oct 25 2000 | Reference hearing ordered BY THE COURT In the matter of Ronald Andre Burton on Habeas Corpus, S034725 (Superior Court of Los Angeles County, No. A026664), good cause appearing, it is ordered that the Presiding Judge of the Los Angeles County Superior Court shall select a judge of that court to sit as a referee in this proceeding and that the court shall promptly notify this court of the referee selected. After appointment by this court, the referee, after proper notice to the parties, is directed to hold an evidentiary hearing and to make findings upon the following questions: 1. Did petitioner give attorney Ron Slick or his investigator the names of witnesses he believed should be interviewed and tell Slick that those witnesses could support a guilt phase defense or defenses? If so, when did petitioner do so, who are those witnesses, and what theory or theories of defense did petitioner tell Slick those witnesses would support? In particular, did petitioner tell Slick that he wanted Slick to present an alibi defense and/or defend on the ground that the eyewitness identification was mistaken or could be undermined by other eyewitnesses? 2. Did petitioner tell Slick that petitioner's purported confession had been falsified. If so, when did he do so, and did Slick have any reason to believe that the officer or officers who reportedly took the confession were not credible? 3. If petitioner gave Slick the names of potential guilt phase defense witnesses, did Slick or his investigator interview those witnesses, when did they do so, what information did they obtain from the witnesses, and of what potential prosecution rebuttal or impeachment evidence was Slick aware when he developed his trial strategy? Did Slick have reason to believe that those witnesses would not be credible? 4. Did Slick keep petitioner informed of Slick's trial plans and/or discuss trial strategy with petitioner and, in particular, did he tell petitioner that Slick did not intend to call witnesses or put on a guilt phase defense because Slick believed that a guilt phase defense likely would be unsuccessful and would make the penalty phase defense less credible? If so, when and in what circumstances did Slick advise petitioner of this? If not, did Slick discuss his planned guilt phase defense with petitioner, when did he do so, and what did he tell petitioner? 5. If Slick discussed a planned guilt phase strategy of presenting no defense with petitioner, did petitioner then or thereafter object (other than in open court during or before trial) and tell Slick that, notwithstanding Slick's conclusion about presenting a guilt phase defense, petitioner wanted a guilt phase defense presented? If so, when did petitioner do so and what was Slick's response? 6. Did Slick have reason to believe that petitioner's in court requests to represent himself were made for the purpose of delaying trial, rather than dissatisfaction with Slick's trial strategy? 7. Was Slick aware of potential witnesses Elizabeth Black, Ora Trimble, Gloria Burton, Michael Stewart, Susan Camacho and Zarina Khwaja, and, as to each, if so did Slick have reason to believe the testimony of each would be incredible or insufficiently probative to justify presenting them at the guilt phase? 8. Did petitioner tell or make clear to Slick's investigator that he wanted to put on a guilt phase defense? If so, when did he do so and did the investigator relay that information to Slick? 9. Would the potential witnesses, if any, identified by petitioner, have been credible, would they have enabled Slick to put on a credible defense, and did Slick have reason to believe that any would commit perjury if they testified as suggested by petitioner? 10. In particular: a. Did detective William Collette tell Slick that Elizabeth Black told him that she did not know petitioner's whereabouts at the time and on the day of the charged homicide? b. Did Black tell Collette that she did not know petitioner's whereabouts at the time and on the day of the charged homicide? c. Did Collette tell Slick that Ora Trimble told him that petitioner had asked her to provide him with a false alibi for the charged homicide? d. Did Ora Trimble tell Collette that petitioner had asked her to provide him with a false alibi for the charged homicide? 11. In sum, did Slick override a clearly expressed desire of petitioner to put on a guilt phase defense, and, if so, would that defense have been credible. (People v. Frierson (1985) 39 Cal.3d 803, 814-815.) It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and of the findings of fact made. |
| Nov 14 2000 | Note: motion for substitution of counsel filed in related A.A., no. S004691 (Crim. 24589) |
| Nov 22 2000 | Filed: Suppl. decl. of Marcia A. Morrissey in support of mtn. for substitution of counsel filed in A.A. No. S004691 |
| Dec 13 2000 | Referee appointed Hon. Gregory Alarcon, Judge of the Los Angeles County Superior Court. |
| Jan 10 2001 | Note: petnr's motion for substitution of counsel was denied this date in related A.A. no. S004691. |
| Feb 8 2001 | Note: Supplemental declaration of Lisa M. Romo in support of motion to be appointed as counsel filed in A.A. case No. S004691. |
| Feb 8 2001 | Note: Supplemental declaration of Marcia A. Morriseey in support of motion to be appointed as counsel filed in A.A. No. S004691 |
| Feb 21 2001 | Note: order filed this date in related A.A. no. S004691, relieving Joel Baruch as Burton's counsel, and appointing Marcia A. Morrissey (lead) and Lisa M. Romo (associate) to represent Burton for all post- conviction proceedings in this court. |
| Feb 28 2001 | Order filed: vacating appointment of Judge Gregory W. Alarcon as referee, and directing the Presiding Judge of the Los Angeles County Superior Court to select another judge of that court to sit as a referee. |
| Apr 11 2001 | Referee appointed Judge William Fahey of the Los Angeles County Superior Court appointed to serve as referee. |
| Apr 30 2001 | Habeas funds request filed (confidential) by attorneys Marcia Morrissey and Lisa Romo |
| May 10 2001 | Filed: Addendum to motion filed by attorney's Morrissey and Romo - confidential. |
| May 23 2001 | Order filed re habeas funds request (confidential) |
| May 24 2002 | Received letter from: the Hon. William Fahey (referee), dated 5-21-2002, requesting guidance from the court as to how to proceed. Atty Marcia Morrissey will not be ready to commence evidentiary hearing on 7-5-2002. |
| Jun 3 2002 | Received letter from: attorney Marcia Morrissey, dated 6-3-2002, in response to referee's letter. (received via fax) |
| Jun 3 2002 | Received letter from: attorney Lisa Romo, dated 6-3-2002, in response to referee's letter. (received via fax) |
| Jun 6 2002 | Note: received original of attorney Morrissey's letter of 6-3-2002 (previously received via fax). |
| Jun 10 2002 | Note: received original of atty Romo's letter dated 6-3-2002. (previously received by fax) |
| Jun 11 2002 | Received letter from: the Hon. William Fahey (referee), dated 6-11-2002, in response to letters from counsel. (received via fax). |
| Jun 13 2002 | Letter sent to: Hon. William Fahey in response to his letter of 5-24-2002, regarding the scheduling of the evidentiary hearing. |
| Jun 14 2002 | Note: received original of Judge Fahey's letter dated 6-11-2002. (previously received by fax) |
| Oct 30 2002 | Habeas funds request filed (confidential) (supplemental) filed by attorneys Morrissey and Romo (confidential). |
| Nov 13 2002 | Habeas funds request filed (confidential) (second supplemental) |
| Nov 20 2002 | Order filed re habeas funds request (confidential) |
| Dec 10 2002 | Habeas funds request filed (confidential) third supplemental applic. (received via fax) |
| Dec 11 2002 | Order filed re habeas funds request (confidential) |
| Jun 29 2004 | Letter sent to: Judge Fahey requesting status report. |
| Nov 19 2004 | Letter sent to: Judge Fahey requesting status report. |
| Jan 6 2005 | Referee's report filed "Second Amended Referee's Report" |
| Jan 6 2005 | Letter sent to: counsel advising that the referee's report was filed this date. Parties are invited to serve and file exceptions to the report of the referee and simultaneous briefs on the merits on or before 2-7-2005. Responses, if any, should be served and filed 30 days thereafter. |
| Feb 1 2005 | Request for extension of time filed to file petitioner's brief on the merits and exceptions to referee's report. (1st request) |
| Feb 2 2005 | Request for extension of time filed to file respondent's brief on the merits and exceptions to the referee's report. (1st request) |
| Feb 7 2005 | Extension of time granted to 4/8/2005 to file petitioner and respondent's exceptions to the referee's report and briefs on the merits. |
| Apr 4 2005 | Request for extension of time filed to file petitioner's brief on the merits and exceptions to referee's report. (2nd request) |
| Apr 5 2005 | Request for extension of time filed to file respondent's brief on the merits. {2nd. request} |
| Apr 13 2005 | Extension of time granted to 6/7/2005 to file respondent's exeptions to the report of the referee and brief on the merits. Extension is granted based upon Deputy Attorney General Chung Mar's representation that he anticipates filing that brief by 6/7/2005. After that date, no further extension is contemplated. |
| Apr 13 2005 | Extension of time granted to 6/7/2005 to file petitioner's brief on the merits and exceptions to referee's report. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Marcia Morrissey's representation that she anticipates filing that brief by 7/7/2005. |
| May 27 2005 | Filed: evidentiary hearing record. [includes 33 vols. of reporter's transcript (2,696 pp.); court documents and minute orders; 4 boxes of exhibits] |
| Jun 1 2005 | Letter sent to: Judge William F. Fahey requesting the transmission of additional record (missing minute orders and reporter's transcripts.) |
| Jun 1 2005 | Request for extension of time filed to file petitioner's brief on the merits and exceptions to referee's report. (3rd request) |
| Jun 6 2005 | Exceptions/briefing filed re referee's report respondent's. (61 pp. - 17,057 words) |
| Jun 7 2005 | Extension of time granted to 7/7/2005 to file petitioner's brief on the merits and exceptions to referee's report. Extension is granted based upon counsel Marcia A. Morrissey's representation that she anticipates filing that document by 7/7/2005. After that date, no further extension will be granted. |
| Jul 5 2005 | Request for extension of time filed to file petitioner's brief on the merits and exceptions to referee's report (4th request) and for extension of time to file petitioner's response to respondent's brief. (1st request) |
| Jul 8 2005 | Extension of time granted to petitioner to 7-18-2005 to file exceptions to the referee's report and brief on the merits. No further extension of time will be granted. Extension granted based upon counsel Marcia A. Morrissey's representation that she anticipates filing the brief by 7-17-2005. The time for the parties to serve and file responsive briefs is extended to and including 9-7-2005. |
| Jul 8 2005 | Filed: supplemental proof of service of petitioner's extension of time request. |
| Jul 11 2005 | Filed: additional evidentiary hearing record: 5 vols. of reporter's transcript (64 pp.) |
| Jul 15 2005 | Exceptions/briefing filed re referee's report petitioner's brief on the merits and exceptions to the referee's report. (361 pp.) |
| Aug 31 2005 | Request for extension of time filed by respondent to file reply to petitioner's brief on the merits and exceptions to referee's report. (1st request) |
| Sep 2 2005 | Request for extension of time filed by petitioner to file reply to respondent's brief on merits. (1st. request) |
| Sep 13 2005 | Extension of time granted to 10/7/2005 to file petitioner's reply to respondent's brief on the merits. Extension is granted based upon counsel Marcia A. Morrissey's representation that she anticipates filing that document by 10/7/2005. After that date, no further extension is contemplated. |
| Sep 13 2005 | Extension of time granted to 11/7/2005 to file respondent's reply to petitioner's brief on the merits. Extension is granted based upon Deputy Attorney General Chung L. Mar's representation that he anticipates filing that document by 11/7/2005. After that date, no further extension is contemplated. |
| Oct 7 2005 | Response brief re referee's report (awaiting more) petitioner's reply to respondent's brief on the merits. (103 pp.) |
| Nov 7 2005 | Response brief re referee's report (fully briefed) respondent's reply to petitioner's brief on the merits. (32 pp.) |
| Aug 10 2006 | Oral argument letter sent to counsel advising that the case could be scheduled for oral argument as early as the October calendar, to be held the week of October 2, 2006. The October calendar will be held at a special oral argument session in Santa Barbara, at the superior court, rather than in Los Angeles. |
| Sep 5 2006 | Case ordered on calendar October 4, 2006, at 9:00 a.m., in Santa Barbara |
| Sep 8 2006 | Order filed Petitioner's Motion to Strike Trial Counsel's Declaration and Exhibits is denied. Petitioner's Motion to Strike the Return's Memorandum of Points and Authorities is denied. |
| Sep 21 2006 | Order filed The order filed on September 8, 2006, is amended to read, in its entirety: Petitioner's Motion to Strike Trial Counsel's Declaration and Exhibits is denied. Petitioner's Motion in the Alternative for a Protective Order is denied without prejudice. Petitioner's Motion to Strike the Return's Memorandum of Points and Authorities is denied. |
| Oct 4 2006 | Cause argued and submitted |
| Dec 18 2006 | Opinion filed: OSC discharged Opinion by Baxter, J. -----joined by George, C.J., Kennard, Chin, & Corrigan, JJ. Dissent by Werdegar, J. -- joined by Moreno, J. |
| Feb 7 2007 | Order filed: remaining habeas corpus issues denied The petition for writ of habeas corpus, filed on August 30, 1993, is denied. Each claim is denied on the merits. The denial as to Claim XXV, to the extent it asserts that petitioner is mentally retarded and his execution would violate the Eighth Amendment, is without prejudice to filing a new petition and supporting documentation to comply with the requirements of In re Hawthorne (2005) 35 Cal.4th 40. In addition, Claims I, II, III, IV, V, VI (except subclaims J, K, and L), VII (except to the extent it depends on exhibits 13 through 15 to the petition), XII (except to the extent it alleges ineffective assistance of trial counsel at the special circumstance retrial), XIII, XV, XVII, XVIII, XIX (except to the extent it alleges sentencing under a constitutionally invalid law), XX (except subclaims D, G, H, J, and L), XXI, XXII, XXIII, and XXIV are untimely. (In re Robbins (1998) 18 Cal.4th 770, 780-781; In re Clark (1993) 5 Cal.4th 750, 782-787, 797-798.) To the extent they repeat claims raised and rejected on direct appeal, Claims III, XII (except to the extent it alleges ineffective assistance of trial counsel at the special circumstance retrial), XIII, XVII, XIX (except to the extent it alleges sentencing under a constitutionally invalid law) and XXIII are procedurally barred. (In re Harris (1993) 5 Cal.4th 813, 829-841; In re Waltreus (1965) 62 Cal.2d 218, 225.) To the extent they could have been, but were not, raised on direct appeal, Claims XVIII, XXI, and subclaim E of Claim VII are procedurally barred. (In re Harris, supra, 5 Cal.4th at pp. 825, fn. 3, 828-841; In re Dixon (1953) 41 Cal.2d 756, 759.) Claim XV, which could have been (but was not) raised in the trial court, is also procedurally barred. (In re Seaton (2004) 34 Cal.4th 197-201.) Werdegar, J., would not apply the Seaton bar to Claim XV. |
| Briefs | |
| Oct 15 1998 | Written return filed |
| May 17 2000 | Traverse to return filed |
| Nov 7 2005 | Response brief re referee's report (fully briefed) |
